ILYAS MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 557/2018

[2019] HKCA 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 557 OF 2018

(ON APPEAL FROM HCAL NO 1069 OF 2017)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam on 20 November 2018. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Pakistan who left Pakistan for China on 30 September 2013.  He sneaked into Hong Kong on 2 December 2013 and was arrested by police on 3 December 2013. He lodged a non-refoulement claim on 7 December 2013 on the basis that if he should be returned to Pakistan he would be harmed or killed by people of an opposition party, the Pakistan Muslim League (N) (“PML(N)”).

The Director’s decision

3.  By a Notice of Decision dated 29 June 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[1], BOR 3 risk[2] and persecution risk[3].

4.  The Director decided that the ill-treatments inflicted upon the applicant by his enemies had not attained a minimum level of severity.  The Director also considered that the low intensity and frequency of ill‑treatment in the past is indicative of low future risk of harm.  In addition, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director.

5.  By a Notice of Further Decision dated 27 July 2017, the Director rejected the applicant’s claim on the right to life under article 2 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”) in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on BOR 2 risk.  The Director considered that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance being violated upon his return to Pakistan.

The Board’s decision

6.  The applicant’s appeal against the Director’s decisions was heard by the Board on 17 October 2017.  The Board found that the applicant had never been inflicted with any serious injuries and was not a particular target of the PML(N) members.  The Board also considered that state protection and internal relocation alternatives are available in Pakistan.  The applicant failed to adduce evidence to establish his non-refoulement claim. Therefore, the appeal was rejected on 8 December 2017.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 13 December 2017 to seek leave to apply for judicial review against the decision of the Board.  He filed an amended Form 86[4] and a second affirmation on 19 June 2018.  In his second affirmation, the applicant asserted that actual life situation is different from the country-of-origin information (“COI”) and that the Board adopted a biased and formulaic approach and was unlikely to be fair.  He further submitted at the hearing that the adjudicator unjustly relied on COI and failed to understand the real situation in Pakistan.

The judge’s decision

8.  The judge decided that the applicant failed to adduce evidence to support his accusation and failed to be specific.  The judge was satisfied that the adjudicator had proper basis for his decision and did not find any error of law or procedural unfairness.

9.  As the judge considered that the applicant has no realistic prospect of success in the intended judicial review, he refused to grant leave to apply for judicial review.

10.  The applicant filed a notice of appeal against the decision of the judge on 26 November 2018.

Grounds of appeal

11.  The applicant stated the following in the notice of appeal as his grounds of appeal:

“My life is danger in my origin country that’s why I cannot take risk in my life could you please save my life as a human been.”

Non-compliance with unless order

12.  The appeal was scheduled to be heard on 11 March 2019.  Directions were given by the Registrar of Civil Appeals on 14 December 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

13.  A notice of hearing of the appeal dated 23 January 2019 was issued and sent to the applicant by post.  In the notice, he was reminded that he should comply with the above directions of the Registrar.

14.  The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 11 February 2019).  As there is non-compliance with the unless order, the hearing date has been vacated.  The court informed the applicant by letter dated 12 February 2019 that the hearing date has been vacated and his appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

15.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

17.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Discussion and disposition

19.  The applicant’s assertion in the notice of appeal lacks particulars or elaborations.  He failed to establish any viable grounds of appeal to reverse the judge’s decision.

20.  As there is no merit in the appeal and no prospect of success in the intended application for judicial review, we dismiss the appeal.